Opinion
Doris Cheng, Michael Albert Kelly, Walkup, Melodia, Kelly & Schoenberger, San Francisco, CA, Jason W. Earley, Bruce Jones McKee, Pro Hac Vice, Christopher Scott Randolph, Jr., Pro Hac Vice, Scott Ashley Powell, Pro Hac Vice, Tempe Dorinda Smith, Pro Hac Vice, Hare Wynn Newell and Newton LLP, David Glenn Hymer, Pro Hac Vice, Ellen S. Presley, Pro Hac Vice, Linda Anne Friedman, Pro Hac Vice, Michael Richard Pennington, Pro Hac Vice, Bradley Arant Boult Cummings LLP, Birmingham, AL, for Plaintiff.
David Ramraj Singh, Weil, Gotshal and Manges LLP, Redwood Shores, CA, Jared R. Friedmann, R. Bruce Rich, Gary D. Friedman, Jonathan Bloom, Pro Hac Vice, Weil, Gotshal & Manges, LLP, New York, NY, for Defendants.
ORDER DENYING WITHOUT PREJUDICE APPLICATION TO SERVE ADDITIONAL DEFENDANTS BY ELECTRONIC MEANS PURSUANT TO Fed.R.Civ.P. 4(f)(3)
[Re: 148]
BETH LABSON FREEMAN, United States District Judge.
Previously, the Court granted Plaintiff Michel Keck’s application to serve seventeen Chinese merchants by electronic means pursuant to Federal Rule of Civil Procedure 4(f)(3). Order, ECF 74. Keck now moves the Court to grant her request to serve additional defendants by electronic means pursuant to Rule 4(f)(3). Mot., ECF 148. Specifically, Keck seeks to serve an additional thirty-six Chinese merchants ("Additional Defendants") using the electronic messaging system on Alibaba.com and AliExpress.com. Id. Although Keck filed the instant motion as an ex parte application, she has sent this motion to Additional Defendants through the electronic messaging system on Alibaba.com and AliExpress.com. Id. at 5; see also ECF 148-4 ("Certificate"). No opposition has been filed. For the reasons stated below, the Court DENIES Keck’s motion without prejudice.
The thirty-six Additional Defendants are listed at the end of this order.
I. BACKGROUND
As described in the Court’s Order, Keck is a professional artist who sells her artwork from her own website and through authorized dealers. Compl. ¶¶ 1, 148. She alleges that her artwork was reproduced and sold on Alibaba.com and AliExpress.com by Chinese merchants to buyers in the United States without her authorization. Id. ¶¶ 156-161. Hence, she brings this suit against e-commerce giant Alibaba and numerous Chinese merchants.
Defendants Alibaba.com, Inc., Alibaba Group (U.S.), Inc., Alibaba Group Holding, Ltd., Alibaba.com Hong Kong, Ltd., and Taobao China Holding, Ltd. are collectively referred to as "Alibaba." On February 7, 2018, Keck dismissed Defendant Alipay US, Inc. without prejudice. ECF 165.
Keck understands that the merchants who sold her artwork without authorization are located in China. Id. ¶¶ 22-96. She now seeks to serve thirty-six Additional Defendants through the online messaging system on Alibaba.com and AliExpress.com. Mot. 1. The thirty-six Additional Defendants have virtual storefronts in Alibaba.com or AliExpress.com. Ex. 2 to Mot. ("Moon Decl.") ¶ 3, ECF 148-2. An investigator transmitted test messages to all Additional Defendants through the Alibaba.com and Aliexpress.com messaging system. Id. ¶ 4. Twenty-nine Additional Defendants sent responses to the test messages. Id. ¶ 6. While the remaining seven Additional Defendants did not respond to the test messages, the investigator received automatic confirmation messages indicating that the test messages were successfully transmitted. Id. ; Mot. 2. Keck, however, has not attempted to locate the Additional Defendants’ physical addresses. See Mot. 3.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 4(f) provides the applicable authority for serving an individual in a foreign country:
Unless federal law provides otherwise, an individual— other than a minor, an incompetent person, or a person whose waiver has been filed— may be served at a place not within any judicial district of the United States:
(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:
(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;
(B) as the foreign authority directs in response to a letter rogatory or letter of request; or
(C) unless prohibited by the foreign country’s law, by:
(i) delivering a copy of the summons and of the complaint to the individual personally; or
(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or
(3) by other means not prohibited by international agreement, as the court orders.
Fed. R. Civ. Proc 4(f); see also Fed. R. Civ. Proc 4(h)(2) (referring to Rule 4(f) for serving a corporation not within any judicial district of the United States).
Under Rule 4(f)(3), courts can order service through a variety of methods, "including publication, ordinary mail, mail to the defendant’s last known address, delivery to the defendant’s attorney, telex, and most recently, email," provided that there is no international agreement directly to the contrary. Rio Props., Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002). To comport with due process, "the method of service crafted by the district court must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ " Id. at 1016-17 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ).
III. DISCUSSION
Rule 4(f)(3) allows for an alternate means of service as long as it is directed by a court and not prohibited by international agreement. It is not necessary for a plaintiff to attempt service by all feasible means of service before turning to Rule 4(f)(3). Rio Props., 284 F.3d at 1016. However, the fact that an alternative method of service is not prohibited by international agreement does not mean that the plaintiff is entitled to use such a method under Rule 4(f)(3). The decision to provide an order under Rule 4(f)(3) is within the sound discretion of the district court, which must determine whether the "particularities and necessities of a given case require alternative service of process." Id.
The Court previously granted Keck’s request to serve seventeen Chinese merchants by electronic means. Order. Keck argues that the Additional Defendants are in a similar situation as those seventeen Chinese merchants. Mot. 1-2. Like the seventeen merchants, the Additional Defendants are believed to be in China and maintain active Alibaba.com or Aliexpress.com storefronts. Id. at 2. Keck’s investigator successfully transmitted test messages and did not receive "bounce back" messages. Id. at 2; Moon Decl. ¶¶ 5-6. Under these circumstances, Keck asserts that the Court should grant her request because there is no international agreement that prohibits service through electronic means. Mot. 2-3.
As the Court’s Order discussed, there is no international agreement precluding service on China-based defendants by electronics means. Order 4-5. However, the circumstances here are different from when Keck sought to serve the seventeen Chinese merchants. Whereas Keck attempted to locate the addresses of the seventeen Chinese merchants and failed to do so, here she has made no attempt to locate the Additional Defendants at all. See Mot. 3. When the Court granted Keck’s request to serve the seventeen merchants through the Alibaba.com and Aliexpress.com messaging system, the Court considered the fact that the seventeen Chinese merchants could not be located even after Keck’s investigator searched Chinese websites, databases, and government registration portals. Order 2, 5. The fact that the physical addresses of those merchants could not be located suggested that the merchants’ primary contact was through Alibaba.com and Aliexpress.com messaging system and that the messaging system may be the only means of contact. Keck has not shown that such considerations are present here.
Keck argues that courts have not required a plaintiff to demonstrate an inability to find the defendant’s physical address before allowing service under Rule 4(f)(3). For support, Keck relies on Rio Props . Mot. 3 (citing Rio Props., 284 F.3d at 1014). However, the Ninth Circuit in Rio Props . explicitly considered the fact that the defendant had no "easily discoverable street address" and had "structured its business such that it could be contacted only via its email address" when approving the district court’s order to permit service by email. Rio Props., 284 F.3d at 1018. Similarly, numerous courts within this circuit have considered the plaintiff’s effort to locate the defendant’s address and whether the address could not be found. See, e.g., ADT Sec. Servs., Inc. v. Sec. One Int’l, Inc., No. 11-CV-05149, 2012 WL 3580670, at *2 (N.D. Cal. Aug. 17, 2012) (considering the fact that defendants could not be located or reached by postal mail and telephone); Williams-Sonoma Inc. v. Friendfinder Inc., No. C 06-06572, 2007 WL 1140639, at *2 (N.D. Cal. Apr. 17, 2007) (considering evidence showing that the physical addresses of the defendants could not be located). When the defendant’s business address is unknowable, the circumstances indicate that the defendant is primarily using its electronic contact information or that the defendant is "striving to evade service." See Rio Props., 284 F.3d at 1018. In that situation, the plaintiff may establish the necessities of effecting service using electronic means. Here, Keck has not provided evidence that the locations of the Additional Defendants are unknowable and failed to show that the "particularities and necessities" of this case warrants service by electronic means.
To be clear, even if the plaintiff knows the defendant’s address, other factors may persuade a court to allow alternative means of service. For example, as Keck points out, the plaintiff in Juicero had knowledge of the Chinese defendants’ addresses. Juicero, Inc. v. Itaste Co., 2017 WL 3996196, at *1 (N.D. Cal. June 5, 2017). Despite that knowledge, the plaintiff was allowed to effect service on the defendants by sending documents to their U.S. trademark counsel, email addresses, and Facebook account. Id., at *2-4. The court found that the defendants’ extensive use of their "Facebook account, ... and their email addresses in advertising their products" in combination with service on their U.S.-based counsel justified the court’s approval of the requested alternative means of service. Id., at *3. In particular, the court noted that the defendants have been in contact with the plaintiff through their U.S.-based counsel. Id. No such combination of factors is present in this motion. Hence, the Court is unpersuaded by Keck’s reliance on Juicero .
Keck also asserts that service by electronic means is appropriate because the Additional Defendants are located in China where "service of process is a drawn-out (and often futile) process." Mot. 4. For support, Keck submits Rick Hamilton’s declaration. Hamilton states that "[u]ntil late 2015, Chinese officials typically took about six months to serve papers under the Hague Convention when a correct address ... was provided." Ex. 3 to Mot. ("Hamilton Decl.") ¶ 3, ECF 148-3. Since late 2015, Hamilton "attempted to serve approximately 300 Chinese defendants ... under the Hague Convention but has received confirmation that only one of those defendants have been served." Mot. 4; Hamilton Decl. ¶ 4. Keck further points out that some courts which allowed service under Rule 4(f)(3) have noted the special difficulties of serving defendants in China. Mot. 4 (citing Juicero, 2017 WL 3996196; In re LDK Solar Sec. Litig., No. C 07-0518, 2008 WL 2415186 (N.D. Cal. June 12, 2008); FKA Distrib. Co., LLC v. Yisi Tech. Co., No. 17-CV-10226, 2017 WL 4129538 (E.D. Mich. Sept. 19, 2017) ).
In Juicero and In re LDK, the plaintiffs argued that serving Chinese defendants under the Hague convention would cause delays. While acknowledging such an argument, the courts in both cases did not rely on the delay factor to permit service under Rule 4(f)(3). As mentioned, the court in Juicero allowed alternative means of service based on a combination of three methods, which included effecting service on the defendants’ U.S.-based counsel. 2017 WL 3996196, at *2-4. In In re LDK, the court granted service under Rule 4(f)(3) because the defendants were elusive and their U.S.-based counsel refused to accept service on behalf of the defendants. 2008 WL 2415186, at *3. Thus, the Court is unpersuaded by Keck’s reliance on these cases.
Some cases have explicitly considered whether the delay caused by the Hague Convention procedure supports service by alternative means. In those cases, the courts granted service under Rule 4(f)(3) where there was evidence that the plaintiff’s service under the Hague Convention was actually delayed. See, e.g., FKA Distrib., 2017 WL 4129538, at *1; Morningstar v. Dejun, No. CV 11-00655, 2013 WL 502474, at *1 (C.D. Cal. Feb. 8, 2013). Here, Keck has no evidence that her service under the Hague Convention has been actually delayed. Her only support is Mr. Hamilton’s declaration which indicates that he has been experiencing significant delay in serving Chinese defendants through the Chinese Central Authority. See Hamilton Decl. ¶ 4. However, it is unclear whether the delays he encountered were due to incorrect addresses or other reasons, and thus the Court is unable to determine whether those circumstances are applicable to this case.
Keck states that she initiated service on two of the Additional Defendants under the Hague Convention and argues that there is no "need to wait for Chinese officials to complete service when the Additional Defendants can be promptly served" through the Alibaba.com and AliExpress.com messaging system. Mot. 4. But a plaintiff’s request to use Rule 4(f)(3) because "it will be much faster ... by itself is not sufficient justification for the Court to authorize service by alternative method." Jimena v. UBS AG Bank, No. CV-F- 07-367, 2010 WL 2465333, at *10 (E.D. Cal. June 10, 2010) (internal quotation marks omitted) (quoting U.S. Aviation Underwriters, Inc. v. Nabtesco Corp., No. C 07-1221, 2007 WL 3012612, at *2 (W.D. Wash. Oct. 11, 2007) ).
For the foregoing reasons, Keck has not sufficiently shown why she should be allowed to serve the Additional Defendants by the messaging system on Alibaba.com and AliExpress.com. The Court does not mean that Keck must exhaust other means before resorting to Rule 4(f)(3). Rio Props., 284 F.3d at 1016. A plaintiff needs "to demonstrate that the facts and circumstances of the present case necessitate[ ] the district court’s intervention" under Rule 4(f)(3). Id. The Court finds that Keck has failed to do so.
IV. ORDER
Keck’s motion to serve the Additional Defendants by electronic means pursuant to Rule 4(f)(3) is DENIED without prejudice.
(Image Omitted)
IT IS SO ORDERED.